TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1550
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....ise duty, and was also discharging the local and central sales tax, as applicable, at the time of sale of their final products to their dealers. The Appellant was also the eligible unit under the area based exemption Notification No. 20/2007-CE dated 25.04.2007, claiming refund of excise duty paid by it through PLA. 3. The Government of Assam, in order to promote rapid industrialization announced a host of incentives in the Industrial Policy, 2003. The Government of Assam under Section 54(1) of the Assam Value Added Tax Act, 2003 floated the Assam Industries (Tax Exemption for Pipeline Units) Order, 2005, for granting incentives/ subsidy to the new industrial units being set up in the State before the cut-off date of 31.03.2006. The industries were granted subsidy by way of incentive in the form of remission of ninety nine percent of the VAT payable by it according to its VAT returns in respect of sale of such goods manufactured in such unit and the balance one percent of tax payable shall be deposited by the unit into the Government account. 4. The Appellant was granted incentive/subsidy under 'Category A' of the Tax Exemption Order for the period from 10.05.2007....
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....e of subsidy. 7. However, without considering the submissions made by the Appellant, the Order-in-Original confirmed the demand raised vide the underlying SCNs. Aggrieved by the same, the Appellant preferred an appeal before the Ld. Commissioner (Appeals). 8. The Ld. Commissioner (Appeals), without appreciating the submissions made by the Appellant, upheld the demand confirmed in the underlying order, vide the impugned Order. 9. The Appellant being aggrieved by the above stated impugned order preferred the present appeal before this Hon'ble Tribunal on the grounds briefed hereunder:" 2. The Ld. Counsel appearing on behalf of the appellant has made the following submissions: - A. THE ISSUE IS NO LONGER RESINTEGRA - THE HON'BLE CESTAT KOLKATA HAS HELD IN THE EXACT SAME FACTS FOR ANOTHER ASSESSEE THAT THE VAT RETAINED AS SUBSIDY/ INCENTIVE UNDER THE ASSAM TAX REMISSION SCHEME IS NOT TO BE INCLUDED IN THE ASSESABLE VALUE. i) It is humbly submitted that the issue is no longer res-integra since the Hon'ble CESTAT, Kolkata, in case of M/s. United Packagers v. Commissioner (Appeals) of Central Excise, Customs & Service Tax, Guwahati - 2025 (4....
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....other taxes, if any, actually paid or actually payable on the goods. In the instant case, the sales tax was always payable by the Appellant, however it was adjusted against the amount of capital subsidy receivable from the State Government, and thus such an amount is to be excluded from the "transaction value". In this regard, reference is also made to Section 54 of the Assam VAT Act, 2003, read along with its 2^nd proviso, wherein if the incentive is granted in the form of remission, the dealer shall be entitled to retain the part of whole of tax collected by way of subsidy from the Government. Therefore, the 99% of VAT retained by the Appellant also constitutes tax itself and has been allowed to the Appellant as capital subsidy by the state government. iv) Further reliance is placed on the decision of the Larger Bench of the Hon'ble CESTAT in the case of M/s. Harit Polytech Pvt. Ltd. & Ors. v. Commissioner, Central Excise & CGST - Jaipur -I & Ors. - 2023 (3) TMI 1120 - CESTAT New Delhi wherein the Hon'ble CESTAT examined the applicability of decision of the Hon'ble Supreme Court in the case of Super Synotex (supra) with respect to the investment subsidy granted by the Ra....
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....hat the decision of the Hon'ble Supreme Court in Super Synotex (supra) is applicable only when the assessee has retained the VAT as his income, and not in a case where 99% of VAT retention is on account of capital subsidy /incentive given by the State Government for setting up a new industrial unit as per Industrial Policy of Assam, 2003. iv) Thus, it is humbly submitted that the decision in Super Synotex (supra) and Maruti Suzuki India Ltd (supra) is not applicable to the instant case. C. WITHOUT PREJUDICE, ENTIRE SITUATION IS REVENUE NEUTRAL SINCE THE DUTY PAID BY THE APPELLANT WILL BE AVAILABLE AS REFUND. i) Without prejudice, it is humbly submitted that the Appellant is availing the benefit of area-based exemption under Notification No. 20/2007-CE dated 25.04.2007. In such case, the Appellant pays excise duty and gets refund of whatever excise duty is paid through cash to the extent of the specified rate of value addition. Further, it is humbly submitted that the refunds claimed during the relevant period were much less than the limit of value addition specified. The notification even provided for fixation of special value addition rates, if the payme....
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....ral Excise, Chandigarh - 2007 (216) E.L.T. 177 (S.C.) wherein it was held that when there is a scope for entertaining a doubt about the view to be taken, extended period of limitation cannot be invoked. iii) Further it is a trite law that extended period cannot be invoked since the Appellant was regularly filing the statutory returns. In this regard, reliance is placed on the following decisions - a. M/s. DTM Construction (India) Limited v. Commissioner of Service Tax, Kolkata - 2024 (3) TMI 71 - CESTAT Kolkata b. M/s. M.A. Enterprise v. CCE & ST, Kolkata - 2024 (4) TMI 906 - CESTAT Kolkata iv) Therefore, it is humbly submitted that extended period is wrongly invoked in this case, and thus, the demand from September 2009 to August 2013 is liable to be set aside for being time barred. E. NO INTEREST AND PENALTY IS IMPOSABLE. i) It is submitted that since the principal demand itself is not sustainable, the charging of interest and imposition of penalty cannot sustain. Further, since there is no mala fide or fraud/ suppression, there arises no question of imposition of penalty. 3. On the other hand, the Ld. Authorized Representa....